Legal Update – February 2013

Friday, February 01, 2013

International Union of Police Associations

MEMORANDUM

From: Ryan Burton, Associate General Counsel I.U.P.A.

To: I.U.P.A. Locals

Re: Legal Updates

The General Counsel’s Office is committed to keeping the members of the I.U.P.A. informed regarding legal issues of concern to Law Enforcement. Over the years, the General Counsel’s Office has amassed considerable research and drafted numerous updates on the most pressing legal issues and landmark cases facing Law Enforcement Officers today. Many of the I.U.P.A.’s past publications are still very relevant and discuss issues which are extremely important for Law Enforcement Officers around the country. The General Counsel’s Office will be updating past publications in order to keep I.U.P.A. members informed and up to date on the current state of the law regarding these issues. One such publication is being re-released this month with an update for 2013.

Enclosed you will find a Legal Update from 2006 examining competing theories over the level of GarrityRights afforded to Officers in different jurisdictions. When this Update was released, a Georgia Appeals Court had recently addressed the degree with which Garrity Rights would be afforded in the State. This Legal Update examines that Court’s decision, how Garrity Rights should be applied in order to provide the maximum protection for Officers under investigation, and the current state of the law in this jurisdiction. This is still pressing issue, as there is still a divide amongst the States regarding the level of Garrity protection afforded to Law Enforcement Officers. Be sure to keep up to date with this and other issues in your jurisdiction. Also, please contact the General Counsel’s Office with questions or if you would like more information on this or other topics.

Favorable Garrity Analysis Adopted by Georgia

By Aaron Nisenson, I.U.P.A. General Counsel

The Court of Appeals for Georgia issued a decision on September 1, 2006, adopting a favorable standard for determining whether Garrity immunity applies to statements given by law enforcement officers. State v. Aiken, 2006 WL 2535046 (Ga. App.). Generally, in order for a statement to be excluded from use in a criminal prosecution, the statement must be compelled by a threat of termination or other serious employment action. A question arises if there is no explicit threat of termination. Under the favorable “Friedrick analysis,” a statement would be protected if the officer subjectively believed that he would be terminated if he did not give a statement, and this fear was objectively reasonable.

In the Aiken case, the Georgia Court of Appeals came down firmly in favor applying the Friedrick analysis. In Aiken, a state probation officer sought to exclude a statement that he gave to an internal affairs investigator. Aiken gave the statement after being required to sign a Notice of Interference with On-Going Internal Investigation, which threatened Aiken with discipline if he communicated with anyone about the interview. However, Aiken was not given a Garrity warning which explicitly directed him to give a statement or be terminated. The Court ruled that because the Defendant conceded he had not been explicitly threatened with termination,

The question then is whether the statements were properly excluded applying the two-step analysis stemming from United States v. Friedrick, 842 F.2d382 (D.C.Cir.1988). As we explained in Stinson,

In Friedrick, the D.C. Circuit held that statements should be excluded under Garrity, if (1) the defendant subjectively believes that he must answer questions or lose his job, and (2) this subjective belief is objectively reasonable.

The Court then ruled that the trial court had properly excluded the Officer’s statement finding that the Officer had subjectively believed he would lose his job if he did not give a statement, and this fear was objectively reasonable and created by the department. In a finding that may be helpful elsewhere, the Court stated that, “the circumstances surrounding the interview, including requiring Aiken to sign the Notice of Interference with On-Going Investigation immediately prior to the interview, constituted sufficient action by the Department to provide an objectively reasonable basis for Aiken’s belief that his failure to cooperate could result in termination from employment.”

2013 Update:

By Ryan Burton, I.U.P.A Associate General Counsel

Following the decision by the Georgia Court of Appeals in 2006, this case was brought to the Georgia Supreme Court the following year. The Georgia Supreme Court affirmed the Court of Appeals’ ruling, concurring with their conclusion that Aiken was coerced into answering the investigator’s questions. Further, the Supreme Court held that Georgia need not directly adopt the Friedrick analysis because Garrity itself provides a wide net of protection with its “totality of the circumstances” analysis. This analysis already allows for the Officer’s subjective belief to be a factor in determining whether or not he was coerced into giving a statement, thereby rendering that statement protected under Garrity.

This ruling places Georgia with the Friedrick line of cases and provides Law Enforcement Officers in Georgia with a clear grant of protections for coerced statements under Garrity. As always, be sure to keep informed regarding the laws and any new developments in your jurisdiction.